I’ve received a letter that was sent on behalf of “innovators, patent holders, patent users, venture capitalists, small businesses, universities, and associations representing literally thousands of entities who care deeply about keeping America the most innovative economy in the world” and addressed to the Chair and Ranking Member of the House Judiciary committee, presumably in anticipation of tomorrow’s hearing on patent reform.

The letter argues:

Patent owners should not have to face multiple, prolonged, and potentially abusive challenges to patent validity.

Without robust procedural safeguards, infringers, market incumbents, or other interested parties will have powerful tools at their disposal to delay unfairly or even to prevent inventors from bringing innovative new technologies to the marketplace. In creating a new three-track system without appropriate safeguards, we run a substantial risk of setting up so many costly administrative hurdles for inventors to defend the legitimacy of valid patents that we could end up stifling the very innovation we are trying to promote.

We believe the U.S. patent system will work best for everyone if administrative challenges are disposed of as quickly and efficiently as possible. Simply:

• Issued patents should be presumed valid until they are determined to be invalid;

• Patents that should not have been issued should be declared invalid quickly; and

• Issued patents that have been upheld as valid are entitled to some form of quiet title.

Specifically suggested are six procedural safeguards:

Parties wishing to commence an administrative challenge to a patent should demonstrate a prima facie case of invalidity of the patent. This threshold requirement prevents competitors from filing frivolous administrative challenges purely for harassment or merely to delay effective commercialization of a new technology with no real reason to question a patent’s validity.

Challengers in administrative reviews should get only one bite at the apple – they must present all their arguments against a patent’s validity at the same time, rather than in expensive and unnecessary serial challenges before the USPTO or the courts that merely prolong the cloud of uncertainty over a patent. Challengers should be barred from raising in a subsequent administrative challenge or in the courts any arguments they raised or could have raised in a previous administrative challenge, so-called “could have raised estoppel.”

Challengers should have to prove that a patent is invalid by at least a preponderance of the evidence. This adopts the presumption that a patent granted by the USPTO after years of examination is valid and due some deference.

Administrative challenges should be concluded by a one-year deadline. This provides a definite time period by which patent holders know the cloud of uncertainty over their patent will be lifted, one way or the other.

A party sued for infringement should be given a certain reasonable time period in which they must decide whether to challenge the patent in an inter partes review. This will avoid administrative reviews becoming a tool to stall enforcement litigation already well underway.

The USPTO should have the power to extend the life of a patent in situations where delays in concluding an administrative challenge unfairly cut short the useful life of a patent. Such patent term restoration could be used to compensate patent owners if the USPTO fails to meet its statutory deadlines for concluding administrative reviews.